We are pleased to have a guest post today by my very good friend, Eric Myers. Eric shares his thoughts about Lean and Six Sigma in the practice of law, a service operation and how to best meet the demands of efficient delivery of legal services, lower costs, budget predictability, quality work, and value for fees. Enjoy his article, but first a little bit about Eric Myers.
Eric is a lawyer by trade. He is the proud parent of 4 children and the husband of Kari. He is a long-time student of Wing Chun Kung Fu and is the co-author of Wing Chun Jo Fen, along with Grandmasters Ip Ching and Ron Heimberger. Like most lean practitioners, he is a student and does not claim to be an expert, but would love to have conversations about reducing waste in the craft of law.
[These are my personal views and not those of my employer or previous employers and should be understood solely as my personal views. Furthermore, all people and events portrayed in this article are purely fictional and any resemblance to any person real or imagined is coincidence. ]
The Law is a craft. It is part art and part manufacturing. It cannot be treated solely as manufacturing; it is not solely amenable to engineered process. It requires judgment and creativity. But the problem is that it is often treated as if it were fine art—as if its product were inspired solely by the muses. The truth is it is a craft and encompasses both art and science, both intuitive leaps and methodical processes.
A Preliminary Observation
Waste is anything that does not produce value for the customer. Thus, the obvious place to start is by determining what the client wants—what the value is. That seems simple enough. But it can be a moving target. Litigation is sometimes likened to war presumably because of its uncertainty and its economic and emotional costs. And like war, the best plan can go out the door when the first bullet flies. What a customer wants is not necessarily a static thing. To further confound the matter, what the customer says they want is not always what they really want and it can take a good deal of skill to help the customer see that.
Thus, it may be that the greatest wastes come from not being really clear about what the customer wants and making sure that objective remains clear in the controlled chaos of legal practice.
While some defects may come from lack of skill, others come from solving the problem that fits the tools rather than the actual problem facing the customer. Attorneys are people—despite what some people think—and we sometimes answer the question we have the tools to answer rather than the question the client needs answered. This pitfall is documented (see Tversky and Kahneman’s work) and it is no surprise that it crops up in the high pressure, high dollar arena of law, where the stakes increase the desire for certainty.
For example, I have caught myself in the middle of a brief subtly, but unintentionally, changing the question I set out to answer because it is easier to answer under the current state of the law. If I don’t commit my hypothesis, my question, to paper early on, this waste becomes more likely.
When an attorney gets a project, he may know that he has 5 other projects in the pipeline. But if he doesn’t communicate that to the client then the client only “knows” that she is not hearing back from her attorney and she assumes nothing is happening. To add insult to injury, some attorneys charge for the time a client spends finding out where there project is.
This may be the most significant of the wastes in legal services because it should be the one that is most easily remedied. There are many “steps” in the process of a legal matter that do not appear to add direct value to the customer. There is a lot of passing a document from one person to another and even more looking for documents, looking for that “one case where…” rather than answering the question for the client, negotiating the deal, or litigating. Intentional or not, the failure to systematically learn from previous experience means that knowledge is fragmented and that it is often re-discovered within the same firm. Re-learning what some in the firm already know is a waste.
I had this driven home to me once when I produced documents to an outside counsel. I produced the documents as searchable PDF documents, after having confirmed with the senior counsel on the project that his firm’s case management software could import the PDF’s. Imagine my reaction when I received a bill that included costs for printing and rescanning those PDF’s. (The senior attorney was very understanding and worked with me but it was still a waste.)
If an associate does legal research and then a senior attorney reviews it there are two choices: the junior associate found what he was supposed to find and so I should not be charged for the senior’s review—which added no value to me as the customer—or the junior associate made a mistake and his supervisor found it—in which case I should not be charged for the junior associate’s time or the defect correction by the supervisor. It is an odd sort of business when I get to charge you for correcting my mistakes. It is a business that thinks I am buying an attorney’s time, when I am really buying their output, their answer—I just happen to pay measured by the time it took to get the answer.
Don’t get me wrong. I am all for the apprenticeship training that, at its best, happens in firms. I do not begrudge some extra time for an associate to learn. But charging for both attorneys, that is overproduction.
Underutilization of People
I have seen in myself that I often don’t utilize those around me fully. In large part, because I would rather (apparently) spend the time checking their work than training them systematically so that I can rely on their work and judgment (to the extent allowed by the cannons of ethics of course). The I-am-to-busy-to-train virus seems to keep me from fully helping those around me to develop the sort of judgment that could save us both time and perhaps even improve the product for the customer.